Tag Archives: Supreme Court

Victoria Kwan and I have been working on a few projects for the past few months. One of our more recent efforts is SCOTUS Map. (SCOTUS stands for “Supreme Court of the United States.”)

This map, based entirely on Victoria’s research (and my rudimentary knowledge of HTML, CSS, and JavaScript), displays where the current and retired Supreme Court justices are speaking throughout the summer and into the fall.

The map includes details on each event itself, the venue, registration information, and (eventually) post-event recaps. The right-hand sidebar lists all events, both past and future, in chronological order. SCOTUS Map will be continually updated as new events are announced, and we plan on creating new iterations of it for each successive Court term (and recess).

During the question-and-answer portion of Justice Stephen Breyer’s international law lecture at the Brookings Institution yesterday, an audience member from the Coalition for Court Transparency asked the justice about the possibility of live streaming audio from Supreme Court oral arguments. Justice Breyer gave a nearly six-minute reply which reiterated some of the same arguments he has made against live video in the past, but the answer did contain an interesting new tidbit at the end in which he mentions recent audio “experiments” from the D.C. Circuit.

Michelle Olsen of Appellate Daily published a transcription of the last part of this answer yesterday evening. The following is my transcription of the full question and answer, which I have slightly edited for clarity.

Audience Member: Alright, this is not a hot political question; it’s a hot legal question. My name is Karl, I’m with the Coalition for Court Transparency.

You referenced five areas [where] American judges might do well to consult foreign sources or foreign legal thought. High courts in Canada and the U.K. and many, many other countries have cameras.

I don’t want to know if you support cameras, because I already know where you stand on cameras in the Supreme Court–but there’s a nice lounge at the Supreme Court where Supreme Court bar members are allowed to listen to live audio. Why don’t we allow the live audio to be transmitted outside the building, to everybody else who might not have the money or means to come to Washington, D.C. and wait in line outside in the cold, [so that they can] listen to such audio?

Justice Breyer’s answer to this question begins at the 2:14:08 mark.

Justice Breyer: Now, to give my unsatisfactory answer to [the question] about cameras in the courtroom under the guise of radio, you have to understand that it’s a pretty tough question, and we’re pretty conservative–with a small “c”–when you start talking about our institution. I mean, we don’t know what would happen if we let cameras in the courtroom. And the risks would be–two [risks], and we don’t know what the answer is. Three [risks], actually.

One risk is that people would begin to think that the oral argument–which is about 5% [of what the Supreme Court does], almost all of our material is submitted in writing–they would begin to think that that was what we’re about. The oral argument! That would be misleading, but not deadly.

What might be worse is that people do relate to people. That’s good. You relate more to your family than you relate to your friends, than you relate to people you don’t know, and people you see you relate to more than people you just hear about, and statistics you relate to not at all. OK. That’s the human condition, and I think it’s probably a good one. But the job of an appellate court–and particularly our court, which is about three levels of appellate courts, or two–is to think about how our decision is affecting the 300 million people who aren’t in the courtroom. They’re not there. But they will possibly be affected by our ruling. And people might, well, just look–to the good guy and the bad guy. And that might have an impact on the effectiveness of the Court.

Or, what is the most obvious thing, and you get privately–opposite advice from different members of the press on this one. [Voices perspective of a SCOTUS justice] “It won’t affect us! I mean, we’re grown up, we hope. And there’s the press there anyway, And why will it affect what questions I ask? I have to watch what I say anyway!” Well, apparently, I don’t. But nonetheless, you have to watch it, it’s public and the press is there, so why would this make a difference? To which some members of the press will say, you just wait ’til you see how you react when you ask a question in good faith on A, and then it’s reported on various shows on television and they show a picture of you. You’ll be pretty careful, and maybe you’ll be careful to stop asking. That might be a public benefit, but nonetheless, you see the point. And you say, go see what happens in the Senate or the House, which perhaps has to respond to public opinion.

But the reason you have a court–the reason we decide constitutional questions–if you go back to Alexander Hamilton, is–why? Because this document [takes out pocket copy of Constitution]… it treats exactly the same way the least popular and the most popular person in the United States. That’s what it’s supposed to be. And by the way, he said, we better give the Court the power to review laws–why? Because if we give the President the power to say whatever he does is constitutional or not, he’ll always say it’s constitutional, and he has enough power already.

Why not give the power to Congress? After all, they’re elected, and many countries have done that. To which Alexander Hamilton says–he doesn’t say it in these words–he says, what happens when the decision is right but unpopular? He says, I’ll tell you about Congress–they are experts in popularity. He says, believe me, they know popularity. But what will they do when it’s unpopular? So let’s take these judges nobody’s ever heard of–they don’t have the power of the purse, they don’t have the power of the sword–fabulous. They’re weak. And give them the authority. And when it’s unpopular–unpopular and important, and by the way, possibly wrong–I mean, I’ve participated on both sides of 5-4 decisions. Not as many as you think–there may be 20% [of decisions that] are 5-4, 50% are unanimous–but somebody’s wrong in these cases. Alright, so–and that is the question I get from the President of the Supreme Court of Ghana, a woman who is trying to further democracy and civil, human rights in Ghana, and from Ouagadougou [in Burkina Faso], and from countries all over–why do people do what you say?

That’s a pretty good question. And it’s taken us–I say, there’s no answer in this document [the Constitution], and Hamilton didn’t answer it, either. He didn’t know. Nobody knew. It’s two hundred years of history. You want people in your country to follow courts and the rule of law–go out to the villages. Don’t just talk to the lawyers. Don’t just talk to the judges. By the way, there are in our country–contrary to popular belief–309 of the 310 million are not lawyers. Alright? And I say, they’re the ones that had to support sending the troops to Little Rock to enforce integration. They’re the ones that have to decide they will follow decisions that they think are really wrong and really unpopular. And that takes time. But that’s part of our job. And who knows? So I say we’re conservative with a small “c.”

And the radio? I mean, the radio–[unintelligible] they tried that in the D.C. Circuit [which has since September 2013 provided same-day audio for its oral arguments], didn’t hurt anything. Could we experiment with that? Maybe. But that’s not right in front of us. So therefore, that’s [my] not answering [the question].

—–

As mentioned in the beginning of this post, most of Justice Breyer’s answer, which focuses on insulating the Court from the misconceptions of the public, retreads his previous statements about cameras in the courtroom. In March 2013, in response to questioning from a House Appropriations subcommittee, Breyer mentioned the Court’s conservatism with a small “c” on the issue, the potential distortion by the press, and the self-censoring effects televised arguments could have on the justices’ questioning. He said then: “I’m not ready yet. I mean, I want to see a little bit more of how all this works in practice. I’d give people the power to experiment. I’d try to get studies–not paid for by the press–of how this is working in California, of how it affects public attitudes about the law. I’d like some real objective studies–I know that’s a bore, but that’s where I am at the moment.”

In January 2014, Justice Breyer told an audience at The Washington Center for Internships and Academic Seminars that he suspects it is a matter of when, not if, oral arguments are televised, but worried about the “demonizing and angelizing” of certain members of the Court.

What made yesterday’s answer different (and encouraging for advocates of live streaming) was his begrudging acknowledgment at the end that the D.C. Circuit has adapted its procedures to make oral arguments more accessible to the public, with no harm done to the integrity or the perception of the court. I would not go so far as to call it Breyer’s endorsement of live audio–as Michelle Olsen pointed out, the D.C. Circuit still doesn’t have live audio, only same-day audio, and it’s unclear which of these two practices Justice Breyer’s musings on “experiments” referred to. Given that the Supreme Court currently releases its argument recordings just once a week on Fridays, though, even moving toward same-day audio at One First Street would be a small step in the right direction.

Noah Newkirk of Los Angeles made national headlines yesterday when he interrupted an oral argument in the Supreme Court with a protest over the Court’s 2010 decision in Citizens United v. Federal Election Commission. Newkirk, who had been admitted into the courtroom as a spectator, stood up and made his statement toward the end of arguments for Octane Health LLC v. Icon Health and Fitness, Inc.–a case that involved patent attorneys’ fees, not campaign finance–before being promptly removed by security. Because cameras are not permitted in the courtroom and the Supreme Court does not broadcast its oral arguments live, initialmediaaccounts of the disruption either summarized or quoted only snippets of what Newkirk reportedly said, while the court’s official transcript of the Octane oral argument left out the protest entirely.

Thanks to new video released by a YouTube user named “SCOTUSpwned,” however, we can now see footage of Newkirk’s protest in full, which was clandestinely recorded (and captioned) by an anonymous person sitting in the spectators’ section with Newkirk yesterday. In addition, SCOTUSpwned also posted five other secretly-made videos from two different Supreme Court oral arguments from this term, ranging from four seconds to half an hour in length. I’ve watched all of them and identified the relevant oral arguments where I can, which I describe below. We begin with the first video that SCOTUSpwned uploaded:

Video 1 (MOVI0000) – Timestamped 10/08/13

Burt v. Titlow (argued 10/08/2013): 16 minutes into the video, you hear one of the attorneys, John J. Bursch, say, “[Y]ou can see how that difference played out in this very case because the Sixth Circuit didn’t look at all the other evidence …,” which matches page 55 of the transcript of the Titlow oral argument.

Video 2 (SUNP0000) – Timestamped 1/25/08

It is inconclusive where this was taken, since the video only lasts 4 seconds. Based on the timestamp, however, I believe this was recorded during the same session, by the same person, as Video 4 (which was of the Burt v. Titlow oral argument; see below).

Video 3 (MOVI0036) – Timestamped 1/1/2008

Octane Fitness v. Icon Health & Fitness (argued 2/26/2014): 34 seconds into the video, you can hear attorney Carter G. Phillips say, “And then when Congress, in 1952, incorporates the exceptional case standard…” which matches the argument on p. 32 of the transcript.

Video 4 (SUNP0001) – Timestamped 1/25/2008

Burt v. Titlow (argued 10/08/2013): Around 38 seconds into the video, Valerie Newman says, “It appears from the record that he got his information from the media. This was a highly, highly publicized case,” which corresponds with p. 50 of the transcript.

Video 5 (SUNP0019) – Timestamped 6/14/2008

Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): 50 seconds in, Roman Martinez says, “Here Congress did not say otherwise. Congress did not embrace a clear and convincing standard,” which matches the dialogue on p. 26-27 of the transcript.

Burt v. Titlow (argued 10/08/2013), Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): This video contains footage from two separate oral arguments. The first 1:10 is from Titlow–although it is mislabeled in the video as “the oral arguments… for the case McCutcheon v. FEC” (which was argued the same day as Titlow, but is not the same case). At the 50-second mark, we can hear Valerie Newman, Titlow’s attorney, say “She had already pled, so she had already entered a plea, and all that was left was sentencing,” which matches p. 50 of the argument transcript. The last half of the video is from yesterday’s Octane Fitness v. Icon Health argument and includes Noah Newkirk (captioned as “Kai” in the video) asking the justices to overrule Citizens United. Newkirk waits until Carter G. Phillips says, “If there are no other questions, your honors, I’d urge you to affirm” (p. 48 of the Octaneargument transcript) before standing up and protesting. The video then shows him being removed from the courtroom. The anti-corruption grassroots group 99rise, of which Newkirk is a co-founder, took responsibility for the protest and issued a press release that included the full speech Newkirk made in court.

[UPDATE: The original version of this post misidentified the first minute and ten seconds of the video as coming from the McCutcheon v. FEC oral argument, in part due to the caption of the videographer and in part due to the fuzziness of the audio–I believed the female voice I heard was Erin Murphy, a lawyer for the McCutcheon appellants. Upon further audio analysis, however, I realized that the words the female attorney was saying matched up not with the McCutcheon argument transcript but the Burt v. Titlow transcript, and that the voice was Valerie Newman’s rather than Murphy’s. None of the six videos on SCOTUSpwned’s YouTube page are from McCutcheon v. FEC. I regret the error.]

As far as I can tell, these are the first videos of the Court in session to go public, sparking online discussion about the identity of the cameraman, the method they used in compiling this footage (what did they use to film the Court, and how did they get it past security?), and whether this incident might ultimately push the Supreme Court toward or away from allowing live broadcasts of its proceedings.

I’m also wondering whether we can expect a “sequel” from 99rise anytime soon. It appears from the differing timestamps and varying audio quality on some of the videos that multiple people managed to sneak devices in and film the Court (Video 1, for instance, bears the correct date for the oral argument in Burt v. Titlow but makes it difficult to hear the words of the attorneys because it captures mostly the breathing of the cameraman, whereas Video 4 of the same oral argument has an incorrect timestamp but much cleaner audio), but to date, only Noah Newkirk has been thrown out for causing a disturbance. It is unclear whether any other collaborators were caught recording the arguments during yesterday’s scuffles. Since the group obviously cares a great deal about the Court’s campaign finance jurisprudence and made a point to be physically present on the day of the McCutcheon argument (Burt v. Titlow, after all, was argued on the same day as McCutcheon), I’m guessing that they were at the Court yesterday because they believed that the justices were going to issue a ruling in McCutcheon. That didn’t turn out to be the case, but what will they have planned when the Court actually does, and how does Court staff plan to tighten security before that day comes?

The Supreme Court pushed the “pause” button on gay marriage in Utah yesterday, preventing any new marriages between same-sex couples from taking place until the case has been decided on appeal by the Tenth Circuit. Let’s take a second to unpack the justices’ order:

OK, so there’s not a whole lot to unpack here. The grant indicates that Justice Sonia Sotomayor, the Circuit Justice in charge of handling stay applications arising from the Tenth Circuit, referred Utah’s request to the full court instead of deciding it herself. This was an expected outcome–as mentioned in my previous post explaining the stay application process, full-court consideration is the most efficient way to dispose of the request and prevent any “appeals” or resubmissions that could happen when an individual Circuit Justice rules on a stay. That the Supreme Court granted the stay was also not surprising. As Rick Hasen notes here, it was very likely that the Court (including even the justices who would support expanding same-sex marriage rights1 ) would want to slow things down on such an important, far-reaching constitutional question.

So what does the grant yesterday tell us about how the Court may rule on the merits in Herbert v. Kitchen, when it is inevitably appealed from the Tenth Circuit? The answer is: very little. We do know that the Court will likely choose to hear the case–based on the requirements for successfully obtaining a stay (also detailed in the flowchart from my previous post), the Court would not have granted Utah its stay unless it thought there was a “reasonable probability” that four justices would grant certiorari when the case eventually winds its way up. We also know from the grant requirements that the full court thought there was a “fair prospect” that five justices might eventually overturn federal district Judge Robert Shelby’s ruling on the Utah same-sex marriage ban, probably because of his game-changing conclusion that same-sex marriage is a fundamental constitutional right–an issue that the Supreme Court itself assiduously avoided addressing in last year’s DOMA and Proposition 8 litigation.

Beyond these questions of probability, however, the grant itself contained no reasoning for the Justices’ decision and addressed none of the substantive arguments brought up by Utah and the same-sex couple plaintiffs, so it is hard to divine how they will rule on the merits. The criteria for granting a stay are different from the standards used for ruling on the substantive questions. The fact that it chose to hit the brakes on same-sex marriage in Utah now does not necessarily mean that the Court will strike down Judge Shelby’s ruling.

A more pressing question created by yesterday’s grant is what happens now to the 1,360 same-sex couples who received marriage licenses from the state–a majority of whom have already used the licenses to get legally married in the seventeen days before the Supreme Court halted the process. Interim Utah Attorney General Sean Reyes said in a press conference yesterday afternoon that he “doesn’t know.” These couples are in “legal limbo,” “uncharted territory.”

My personal feeling is that yesterday’s stay should not erase or invalidate the hundreds of same-sex marriages that were legally carried out in Utah in the period between Judge Shelby’s initial December 20 ruling and the Supreme Court order. Up until yesterday, while Utah’s stay request was slowly moving its way up the federal courts, Judge Shelby’s decision striking down Amendment 3 was still controlling in the state, so these marriages did not take place in violation of any court order or state ban. A trickier question is what happens to the couples who obtained marriage licenses legally during those seventeen days but had not actually gotten married by the time that the Supreme Court issued the stay. We should fully expect further “offshoot” litigation on this matter.

Finally, it’s worth noting that Utah is still weighing proposals to bring in outside counsel to help with Kitchen, which will be scheduled for argument before the Tenth Circuit this spring. Outside help would probably be a wise idea, given the state’s well-documented bungling in the last few weeks. That Utah dropped the ball repeatedly on moving its stay application along–first by neglecting to ask Judge Shelby at the litigation stage for a stay of any possible ruling in favor of the same-sex couples, then by running to the Tenth Circuit for an emergency stay before Judge Shelby had even ruled on its request, then by waiting a full week to appeal the Tenth Circuit stay denial to Justice Sotomayor–is the reason why the state is now dealing with such a large number of marriages that may or may not be legal.

For an example of a Supreme Court justice advocating for an incremental approach to the recognition of a constitutional right, look no further than Justice Ruth Bader Ginsburg’s comments on Roe v. Wade. She has repeatedly said that abortion rights should have been settled state-by-state rather than in one fell swoop, which in her opinion had the effect of polarizing the national discussion. A similar argument regarding strategy has played out amongst same-sex marriage proponents. [↩]

Justice Sonia Sotomayor of the Supreme Court is set to decide whether same-sex marriages in Utah, which have been conducted since a federal trial judge overturned on December 20 a state ban on such marriages, can continue while the case is being appealed, or whether they must cease for the time being.

After both Judge Robert Shelby and the Tenth Circuit Court of Appeals denied its application for an emergency stay, Utah took its request up to the Circuit Justice assigned to the Tenth Circuit, Justice Sonia Sotomayor, on December 31. Justice Sotomayor asked the plaintiffs to submit its response opposing the stay by noon, January 3. Their brief can be found here (courtesy of the Legal Times).

From here, Justice Sotomayor can choose to decide the stay herself, or she can refer the issue to the full Supreme Court. I’ve created a flowchart (click to enlarge) to help explain how a non-capital stay1 moves through the federal courts. The magenta box on the left lists out what a party must show in order to obtain a stay.

In terms of where in the process we are right now, Utah’s stay application is at the teal box labeled “Circuit Justice (Justice Sotomayor).”

There has been a lot of speculation in the last few days over whether Justice Sotomayor will keep the stay application for herself or bring in the rest of her colleagues, with many predicting that she will refer it to the full Court. As the chart shows, that seems to be the quickest, most efficient way to dispose of the application–once the full Court has voted on the stay, its decision is final.

Individual Circuit Justice rulings, meanwhile, are theoretically subject to “appeal.” If the Circuit Justice denies the stay, the party petitioning for a stay can resubmit the request to another individual Justice of its choosing (Supreme Court Rule 22.4, however, points out that this tactic is “not favored,” and the Justice to whom the request is resubmitted will usually then refer it to the full court, out of deference to the Circuit Justice and to defuse attempts at “justice shopping”). If the Circuit Justice individually grants the application, the party opposing the stay can then ask the full court to vacate the stay. Now, in practice, the Circuit Justices are accorded a great deal of deference in their individual decisions–Sotomayor, after all, did just individually grant a stay on a separate case two days ago–but the possibility that their rulings might end up being reviewed by the full Court anyway may incentivize them to “share.”

UPDATE: The Supreme Court granted Utah’s request for a stay this morning, halting same-sex marriages in the state until the Tenth Circuit has decided the case on appeal. The one-paragraph order, which can be found here, shows that Justice Sotomayor did in fact refer the stay request to the full court. The Supreme Court did not touch the merits of the case in its grant of the stay, providing no explanation of its decision or analysis of the two parties’ arguments. As Utah’s Fox 13 News reporter Ben Winslow notes, over 900 same-sex marriages have been conducted in the state since Judge Shelby’s initial ruling on December 20. Winslow reports that the Tenth Circuit expects to hear oral argument in the case this March.

As opposed to capital stays, where a convicted individual has received the death penalty–these play out differently because of the nature of such cases [↩]

Of course, their work is still far from done. After Illinois, the focus will turn west toward New Mexico and Oregon.

Traditionally, states have legalized same-sex marriage through one of three ways: by referendum, through the state legislature, or via a ruling from the state’s judiciary.

New Mexico, the only state that has neither a constitution nor a state law explicitly addressing same-sex marriage, could become the 17th state to legalize such unions, thanks to the third route. Because of the state law’s silence on the matter, eight out of thirty-three counties began issuing marriage licenses to gay and lesbian couples after the Windsor and Hollingsworth rulings–eventually prompting all thirty-three New Mexico county clerks to ask the state supreme court for clarification on the constitutionality of same-sex marriage. The New Mexico Supreme Court heard oral argument in October 2013 and is expected to hand down a decision by the end of this year.

If the New Mexico Supreme Court rules in favor of legalizing same-sex marriage, the state will join Massachusetts, Connecticut, Iowa, California and New Jersey as having decided the issue through a judicial ruling.

Meanwhile, advocates in Oregon are planning to overturn the state constitution’s ban on same-sex marriage through a referendum. The coalition Oregon United For Marriage is in the process of collecting the 116,284 signatures required by next July in order to place the question on the ballot in November 2014. If it succeeds (as of today, it needs only 1,204 more names), there’s cause for optimism: a December 2012 poll showed that 54% of Oregon voters would support marriage equality, versus 40% who would vote against it. Though gay and lesbian couples cannot be legally married in Oregon just yet, the state announced in October 2013 that it would start recognizing valid same-sex marriages from other states.

Should a same-sex marriage initiative pass in Oregon, the state will join Washington, Maine and Maryland as having settled the issue by popular vote.

The Human Rights Campaign anticipates that 40% of Americans will live in a state with marriage equality by the end of 2014.

At yesterday’s oral argument, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.

Last term, the Supreme Court’s Fourth Amendment cases made for some curious cross-aislealliances, pitting a privacy-friendly Justice Scalia and his liberal colleagues Ginsburg, Sotomayor and Kagan against a government-supporting Justice Breyer and the conservative bloc of Chief Justice Roberts and Justices Alito and Thomas (and sometimes Kennedy). Wednesday’s oral argument in Fernandez v. California, however, saw Breyer and Scalia falling back along more conventionally ideological lines, with the former attempting to balance a rather unsympathetic defendant’s rights against a domestic violence victim’s needs, and the latter coming out in favor of a more expansive reading of law enforcement’s investigatory powers.

Fernandez v. California stems from a 2009 encounter between Los Angeles police and a man suspected of committing robbery and gang-related assault, who was spotted near the crime scene and subsequently seen running into an apartment. After Fernandez’s live-in girlfriend, Roxanne Rojas, opened the door for officers, fresh bruises and blood visible on her body, Fernandez told them that they could not legally come inside. He was removed from the premises anyway based on suspicion of domestic violence, arrested and taken to the police station. Two officers then returned to the apartment without a warrant and received consent from Rojas to search the premises, where they found evidence that would later be introduced at Fernandez’s robbery and assault trial, resulting in his conviction. The question before the Supreme Court now is whether the police violated Fernandez’s Fourth Amendment rights by warrantlessly searching his home with only the permission of the co-tenant girlfriend, even though Fernandez had earlier told the police in no uncertain terms that they could not enter. (If so, the state would not have been able to use the incriminating evidence from the apartment at his trial.)

In 2006’s Georgia v. Randolph, the Supreme Court established that a co-occupant’s objection to the police search of a home overrides another co-occupant’s consent if both co-occupants are present. California argues that its search did not violate Randolph because Fernandez was absent at the time the police officers returned and Rojas, as the only present co-tenant then, had the right to open her home to whomever she wished to grant entry. The removal of Fernandez from the apartment–even if it was forcible–effectively nullified his refusal to consent to a search.

Fernandez, on the other hand, interprets Randolph to mean that once a physically present co-tenant has objected to the search, “an objection… remains in effect until officers learn that the objector no longer wishes to keep the police out of his home”–or until the police get a warrant. In other words, for the seven-year-old precedent to have any force, the police must not be allowed to gain consent for a warrantless search simply by carting an objecting tenant away from the premises.

This reading of Randolph appeared to be in trouble from the moment that Justice Breyer– whose Fourth Amendment jurisprudence typically reflects an optimistic view of the government using its investigatory powers in good faith–opened questioning with a hypothetical about a domestic abuse victim who is unable to ask the police to come investigate a shared home for evidence of the crime even after the assailant has been arrested, because there is no clear probable cause for a warrant and no consent from the violent co-tenant. Breyer is clearly troubled by Fernandez’s argument, which he believes would deny Rojas her rightful authority as co-occupant to admit a visitor into their home during the 500-plus days he spent in custody.

On the other hand, Breyer, who joined the majority (and authored a concurrence) in Randolph, also doesn’t want to undermine his previous position by giving free rein to law enforcement to change presences into absences. So he tries to reconcile his vote in Randolph with his unease in Fernandez with a compromise: the known objection of a tenant who is then removed from the house by law enforcement could remain valid for a limited “reasonable time” afterward (the exact definition of “reasonable time” to be decided by the lower courts), during which the police cannot search the house without a warrant.

Unfortunately for Breyer, none of his colleagues seem terribly receptive to this idea. Of the nine justices, Alito articulates the case against Fernandez most vociferously, suggesting at several points that Georgia v. Randolph was wrongly decided and ought to be overturned entirely. “I don’t understand why the fact that one is a joint tenant is not the end of the analysis. Why shouldn’t it be?” Justice Alito asked Fernandez’s lawyer, indicating his belief that present consent should always override a present objection, much less an absent one. For Alito, Randolph has got it reversed–since he can’t imagine having the authority to ever tell his co-tenant what visitors she could or couldn’t permit into the home, Rojas’ consent alone should have disposed of the entire case.

Justice Scalia, who was in last Term’s cases a champion of privacy interests and mistrustful of government in search and seizure cases, dissented in Georgia v. Randolph, in part over concerns that abusers would use the rule privileging present objections to prevent police from investigating domestic violence, over the wishes of their battered partners. Today, he returned to that stance, telling Fernandez he was asking for an overbroad extension of a narrow ruling. Likewise, Chief Justice Roberts (who dissented in Randolph) and Justice Kennedy (who was in the majority) treated Fernandez’s Fourth Amendment rights as virtually nonexistent in this situation, repeatedly stating that assault victims should not be deprived of the law enforcement assistance they might want to ask for in the abuser’s absence. The fact that Fernandez is basically the world’s worst roommate has made this an easier case for them to decide.

Sotomayor thinks the police need to try harder before resorting to warrantless searches. Picture via The New Yorker.

With the conservative justices focusing mainly on the social customs of roommates and the rights of Fernandez’s co-tenant, it fell on Justice Sotomayor, the most vocal defender of Fernandez’s position yesterday, to point out that California’s proposed reading might grant law enforcement too much control in situations where they already have a great amount of power. Sotomayor questioned the wisdom of giving the police carte blanche to manipulate Randolph’s absence/presence test –“[a]ll they have to do is arrest and remove people”– and circumvent proper search and seizure procedures. When California’s lawyer told Justice Breyer that his “reasonable time” compromise would not be a sufficiently “clear answer” for law enforcement, Sotomayor interjected: “How about a clear answer? Get a warrant.” She reiterated this point again later: “I don’t know why that’s so difficult for police officers to understand. Your first obligation under the Fourth Amendment is to get a warrant.”

While that may be true in principle, there’s an argument to be made that the Roberts Court has been slowlyweakening the warrantrequirement over the years, and the unsympathetic facts of Fernandez’s case surely did not help his cause. From today’s argument, it looks as though the Supreme Court will reduce Georgia v. Randolph to “nothingness,” as Justice Ginsburg mused. Sotomayor may be able to convince Ginsburg and Kagan, who both showed some discomfort with the amount of control their conservative colleagues would hand to the police. She might also get Breyer’s vote if she can somehow figure out a test that is consistent with both his Randolph concurrence and his desire to limit it in situations like these. Without the support of Scalia, however, the list of justices supporting Fernandez’s claim is stuck at four, which, in the Supreme Court, is still a losing number.

Michigan Attorney General Bill Schuette will defend Proposal 2, which changed the state constitution to ban affirmative action in public education, before the Supreme Court Tuesday. (Picture via Detroit Free Press)

Tomorrow afternoon, the Supreme Court will once again tackle the thorny question of affirmative action in higher education, less than four months after bouncing Fisher v. University of Texas back to a lower court for a newly-tightened and more rigorous examination of the constitutionality of Texas’ race-conscious undergraduate admissions process.1 While the central dispute in Fisher involved the limits of one university’s specific plan to use race as a factor amongst others to achieve a diverse student body, the question in Schuette v. Coalition to DefendAffirmative Action comes at the issue from a different direction: can a state’s voters change their constitution to ban public universities from considering race in their admissions plans at all?

In 2006, Michigan voters did precisely that by passing Proposal 2, which amended the state’s constitution to prohibit preferential treatment on the basis of race, sex, ethnicity or national origin in its public education system.2 Proposal 2 was written as a direct response to Grutter v. Bollinger, the 2003 Supreme Court decision that reaffirmed the constitutionality of universities considering race as one factor in holistic admissions policies, while simultaneously noting that such plans, if challenged, were still subject to strict scrutiny, the toughest level of judicial review. Under the strict scrutiny standard, a university (in Grutter, the University of Michigan Law School) must do two things: it must show that it has a compelling interest in the challenged admissions scheme, and then show that it has narrowly tailored its admissions process to fit that interest.

In the Grutter opinion, Justice Sandra Day O’Connor wrote that the First Amendment right of a university to attain a diverse student body–a principle first laid out in 1978’s Regents of the University of California v. Bakke–sufficed as a compelling interest in the context of higher education. “[U]niversities occupy a special niche in our constitutional tradition,” she asserted, and are therefore entitled to “educational autonomy” that allows them to “make [their] own judgments as to … the selection of [their] student body.” Because of this First Amendment right,the Supreme Court should in the process of applying strict scrutiny accord a great deal of deference to the University of Michigan’s “educational judgment that diversity is essential to its educational mission.” In fact, where diversity is the compelling reason for an affirmative action plan, courts should presume the school has acted “in good faith” in narrowly tailoring the plan to that interest. Using this standard, the Grutter court deemed constitutional the University of Michigan Law School’s admissions plan.

Three years after Grutter, opponents of affirmative action successfully pushed through Proposal 2 in order to stop the state’s universities from implementing such plans. In turn, the day after the amendment’s passage, a number of individuals and interest groups (including the Coalition to Defend Affirmative Action) banded together to file suit against Proposal 2 as it pertained to higher education. A federal district court upheld the affirmative action ban, but an en banc Sixth Circuit subsequently overruled that decision, 8-7, in 2012 on the basis that the prohibition violated the Equal Protection Clause of the Fourteenth Amendment.

Whose rights were being violated? Was it the universities’ rights to put together a diverse student body in order to fulfill its educational mission–an academic freedom that, as Bakke and Grutter told us, long has been viewed as a special concern of the First Amendment? Given what Justice O’Connor had written in 2003, one might have assumed so, but the Coalition and its allies had decided to take a different tack. Instead, they–and the en banc Sixth Circuit opinion, in turn–relied on the “political restructuring” doctrine first set out in 1969’s Hunter v. Ericksonand later reaffirmed in 1982’s Washington v. Seattle School District No. 1to find that Proposition 2 had unconstitutionally deprived minorities of equal access to “the tools of political change.”

In Hunter v. Erickson, the citizens of Akron, Ohio overturned a municipal fair housing ordinance and changed the city charter to require a citywide vote on any similar laws in the future. The Supreme Court invalidated the amendment, ruling that “the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” In Washington v. Seattle, the Supreme Court struck down a voter-approved state law that banned the use of mandatory busing in general, non-racial terms, but included so many exceptions that its true effect was to prohibit busing for the racial integration of public schools. Applying Hunter, the Seattle Court found Washington state had placed “unusual burdens” on the ability of racial minorities to enact legislation “specifically designed to overcome the ‘special condition’ of prejudice.” Because the majority of voters had created an extra obstacle in the political process that specifically targeted a minority group unlikely to win at the ballot box, the judiciary was obligated to step in and “[safeguard] the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Taken together, Hunter and Seattle created a two-part rule for determining when an enactment has engaged in impermissible political restructuring: (1) the law in question has a racial focus that targets a program that “inures primarily to the benefit of the minority,” and (2) reallocates political power in a way that puts special burdens on the minority group. Applying this test, the Sixth Circuit found that Michigan’s Proposal 2 disadvantages minorities in this exact manner, by removing the decision of whether to use race consciousness in university admissions from the educational institutions and fixing the ban in the state constitution. Now, a citizen of Michigan who wants a public college or university to consider race as one factor in the admissions process–a practice still constitutional under Supreme Court precedent–cannot merely lobby the university for such a policy, as an individual who desires special preferences for legacies or athletes can do. Rather, he or she must undergo the expensive and time-consuming process of amending the state’s constitution as well. This showed, the Sixth Circuit concluded, the majority had “not only won, but has rigged the game to reproduce its success indefinitely.”

University of Michigan students at a pro-diversity rally on October 9, 2013. (Picture by AP Photo/The Ann Arbor News, Melanie Maxwell, via Monroe News)

Whether the Supreme Court agrees with the Sixth Circuit opinion will depend on how it distinguishes Proposal 2 from the laws challenged in Hunter and Seattle. Michigan Attorney General Bill Schuette (rhymes with ‘duty’) argues that the Sixth Circuit misapplied the political restructuring rule, which is only relevant to laws that create political obstacles to equal treatment, not laws that bar preferential treatment as Proposal 2 does. Rather, by “prohibit[ing] the State from classifying individuals by race or gender,” Proposal 2 actually furthers, not subverts, the goals of the Equal Protection Clause. “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex,” the Schuette brief states, in an unmistakable echo of Chief Justice John Roberts’ most famous line in Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 case involving affirmative action at the elementary school level: “The only way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In addition, Schuette maintains that Proposal 2 could not have targeted a politically powerless minority, as the amendment bars both preferential treatment for race and for gender. “[T]o the extent [Proposal 2] can be characterized as ‘disadvantaging’ any groups, those groups constitute a majority of Michigan’s population,” the brief states, arguing that it would be much easier than the Sixth Circuit suggests for Proposal 2’s opponents to overturn the amendment.

Given the way that each Justice has voted on affirmative action programs in the past, there is good reason to believe that Chief Justice Roberts and Justices Alito, Thomas and Scalia will be sympathetic to Attorney General Schuette’s arguments. Though the Sixth Circuit’s en banc opinion purposely avoided revisiting Grutter and discussing the constitutionality of affirmative action, focusing solely instead on the political restructuring arguments, it is hard to imagine that Roberts, Alito and Scalia’s unease with race-conscious admissions policies will not come out in the oral argument tomorrow. Justices Sotomayor, Ginsburg and Breyer, on the other hand, are likely to be skeptical of Schuette’s position. Since Justice Kagan has recused herself from this case and there are only eight justices voting, a 4-4 split would allow the Sixth Circuit decision invalidating the affirmative action ban to stand–making Justice Anthony Kennedy, once again, the likely decider.

As I explained in a piece on Fisher and affirmative action last year, Justice Kennedy has long harbored conflicting feelings about affirmative action programs. Just last Thursday, Jess Bravin of The Wall Street Journal asked the justice whether the inclusion of women and ethnic minorities on the Court had benefited the institution. Kennedy replied: “Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does.” This, in a nutshell, is Kennedy’s continuing attitude toward affirmative action in public education–it’s somewhat good, but it’s also a somewhat lazy way to achieve true diversity. He doesn’t have a definite answer about how exactly schools can work around this contradiction, but he knows that he wants them to try harder. How well Proposal 2’s challengers fare at tomorrow’s oral argument may hinge on their ability to convince Kennedy that these schools should not be barred from even giving it a shot.

So where does all of this lead us? Personally, I find it most helpful to view Fisher and Schuette as parallel cases that hammer away at affirmative action from two different sides. When the 7-1 Fisher decision was first handed down in June, many supporters of affirmative action breathed a sigh of relief, as they had feared a wider-ranging decision ruling racial affirmative action unconstitutional outright. However, with Kennedy’s majority opinion in Fisher ordering the lower court to give “no deference” to the University of Texas’ narrow tailoring on remand, the public university’s First Amendment right to a diverse student body has been all but gutted, making it much harder for schools to defend race-conscious admissions policies. Schuette now presents another possible alternative for states to defeat affirmative action by pre-emptively prohibiting it, thus eliminating the need to even bring the university to court. In other words, the Roberts Court may well choose a “death by a thousand cuts” strategy rather than one fatal body blow–especially with Justice Kennedy’s ongoing ambivalence–but the result remains the same.

Fisher will be heard on remand by the Fifth Circuit on November 13th of this year. [↩]

Other parts of Proposal 2 also barred preferential treatment for the same categories in public employment and public contracting, but the challengers in Schuette are only questioning the validity of the affirmative action ban in the context of public education. [↩]

In a barn-burner of a decision today, the Supreme Court found unconstitutional the federal Defense of Marriage Act (DOMA), striking down the law based on a combination of states’ rights, equal protection and due process arguments. As expected, Justice Anthony Kennedy wrote the majority opinion for United States v. Windsor, joined by Justices Breyer, Kagan, Sotomayor and Ginsburg. Justices Scalia, Roberts, Alito and Thomas dissented, with the former three each penning his own dissent.

The voiding of DOMA, which had kept the United States government from recognizing married same-sex couples, means that all legally-married couples can now receive the federal benefits allocated based on marital status, regardless of whether your spouse is of the same sex or not. The question of whether you can legally marry a person of the same sex in the first place, however, remains in the hands of the states, as the Court stopped short of declaring same-sex marriage to be a fundamental right.

The above interactive graphic shows key quotes from the justices, pulled from the March oral argument and from today’s ruling. You can scroll over each justice to open up a text box with his/her quotes. The red dot indicates the author of the majority opinion; yellow dots indicate the other justices in the majority; blue dots indicate the dissenters.

Further analysis of the Court’s decision in United States v. Windsor to come.

Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v.Windsor,the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make1:

Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.

Assuming that Windsor isn’t decided on a standing issue(and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”––i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.

Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”

Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.

If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case. [↩]